Deliberate Intent Action For Miner’s Death Dismissed By West Virginia Federal Court

In March 2009, a roof bolter for a West Virginia mining company was injured when a short shank metal wrench came out of a drill chuck and struck him in the head.  After a CT scan that night showed no fracture, he returned to work the next day, but was found dead in his bed in December 2010.  An autopsy revealed that he died of a seizure and that “in the setting of a traumatic seizure disorder following a remote head injury at work while employed as a professional coal miner.”  His estate brought a deliberate intent action against the mining company for which he worked.  The U.S. District Court for the Southern District of West Virginia granted summary judgment to the mining company last week.

To satisfy West Virginia’s deliberate intent exception to workers’ compensation recovery, the plaintiff must show, among other elements, that the alleged specific unsafe working condition violated either 1) a state or federal safety statute, rule, or regulation, whether cited or not, or 2) a commonly accepted and well-known safety standard within the industry or business of the employer.  The court concluded that the worker’s estate could not establish this element of its case.  The estate alleged that the specific unsafe working condition in question was the use of “hands on” roof bolting tools, which violated 30 C.F.R. § 75.1725(a) and commonly accepted industry practices.  The court disagreed, finding that the regulation, which provides that “mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately,” relates to generally requiring safe workplaces and equipment and thus is not a regulation “specifically applicable to the particular work and working condition involved.”  Accordingly, it was not the type of regulation needed for a deliberate intent action.  The court also rejected the estate’s argument that evidence of the equipment manufacturer’s manual’s instructions for operating the equipment was enough to establish a “well-known and commonly accepted” standard of the coal mining industry with respect to the safety of holding onto or grabbing for rotating drill tools.  In dismissing the case, the court emphasized that the estate’s expert failed to identify any specific well-known safety standard within the mining industry.